Are You Ready for H-1B CAP Season?

Are You Ready for H-1B CAP Season?

 By Houston Immigration Attorney Michele L Strickland

What is an H-1B visa?

The Immigration and Nationality Act provides the H-1B visa category for temporary specialty workers.  A specialty occupation is one that requires a college degree. Employers may temporarily employ foreign nationals who hold at least a Bachelor’s degree in H-1B classification.

What is the H-1B CAP?

The number of new H-1B visas are limited each year.  H-1B visas are capped at 65,000 each year for foreign nationals who hold a Bachelor’s degree.  An additional 20,000 visas are allocated for individuals who hold an advanced degree (Master’s, Ph.D. or Professional degree) earned in the U.S.  Petitions received during the filing period are randomly selected by lottery for processing.  Last year USCIS received 199,000 petitions during the filing period.

Does the H-1B CAP apply to you?

The CAP only applies to initial H-1B petitions.   Individuals are exempt from the CAP if they have already been counted against the CAP within the past six years.  Once an individual is counted toward the CAP employers may apply for an extension or change of employer without the individual being counted again.

Additionally, H-1B workers who are petitioned for by an institution of higher education or its affiliated or related nonprofit entities; a nonprofit research organization; or a government research organization are not subject to this numerical cap.  J-1 physicians who have obtained a waiver through a State 30 program or a federal program are also exempt from the CAP.

How should an employer prepare for an H-1B filing?

Employers should identify potential employees eligible for the H-1B CAP.  They should seek guidance on prevailing wage issues for the position offered and understand their obligations under the Department of Labor laws regarding the terms of the Labor Condition Application (LCA).  Additionally, employers need to anticipate the costs of filing an H-1B petition (attorney’s fees, USCIS filing fees, etc.).  Finally, they should plan for rejection or denial of the application – how would the employer retain the employee not selected in the lottery?

How should employees prepare for an H-1B filing?

Employees should determine if their occupation and credentials qualify for an H-1B visa.  Employees should check with their employer, or potential employer, to see if they will sponsor them for an H-1B visa.  They will need to gather the required documents: passport; diplomas, transcripts and education evaluation (if a foreign degree); resume; documents to show maintenance of status, if in the U.S.; and necessary documents for dependents, if any.

USCIS policy in processing H-1B petitions is changing.  Proposed rules are expected prior to H-1B CAP season.  The FY 2019 H-1B cap-subject quota season will open on April 1, 2018.  You should contact a qualified immigration lawyer no later than mid-February 2018 to determine their employment immigration options.

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